Owner of Day Care Center Is Charged in Suffocation of Baby

By RICHARD PÉREZ-PEÑA

Published: August 10, 2005

A year after a baby suffocated under a pile of toys at an overcrowded Queens day care center, prosecutors charged the center's owner yesterday with a misdemeanor.

The owner, Heather Zlotshewer, 35, was charged with second-degree reckless endangerment in the death of a 7-month-old boy, Matthew Perilli. If convicted, she will face a maximum penalty of a year in jail and a $1,000 fine. Ms. Zlotshewer, who now lives in Philadelphia, surrendered to the police yesterday morning. She was arraigned yesterday evening, and was released after posting bail of $2,500.

City investigators said that on the afternoon of Aug. 11, 2004, while Matthew napped in a crib upstairs and Ms. Zlotshewer was downstairs with other children, two 3-year-olds piled toys on top of the sleeping baby until he could no longer breathe.

Barely an hour before Ms. Zlotshewer found Matthew under the mound of toys, city inspectors had visited the center, Devlin Day Care, at 109-19 72nd Avenue in Forest Hills. They found the center, which was licensed, dangerously overcrowded.

They reported that Ms. Zlotshewer was the sole adult with eight infants downstairs in the two-level apartment, that parents were leaving with a ninth infant as they arrived, and that when they heard noises from above, she told them there were three more children upstairs -- Matthew and the two 3-year-olds; they did not go up to see for themselves.

City law requires at least one adult for every two children under age 2 in an in-home center.

Noting that there are many illegal, unlicensed day care operations in the city, the Queens district attorney, Richard A. Brown, said in a statement, ''The sad irony of this case is that Matthew Perilli's parents thought that they were acting in their young son's best interests by placing him in a licensed day care program.''

Stephen McCarthy, Ms. Zlotshewer's lawyer, declined to comment directly on the charge, but said, ''Heather Zlotshewer's heartfelt sympathy and prayers go out to the Pirelli family.''

The case prompted a shake-up of the Bureau of Day Care, part of the Health Department, and led to more frequent inspections.

The bureau received a complaint about Devlin in July of last year; inspectors visited 12 days later and found it was operating illegally. The license was valid for the apartment on 72nd Avenue, but it was operating out of a nearby converted office that did not meet the standards for a day care center. Inspectors also said there were too many children there.

Another complaint about Devlin Day Care prompted another visit the next month, by which time Ms. Zlotshewer had moved the operation back to the licensed apartment. But the inspectors who called on her were not trained in examining in-home day care centers.

Although word of Matthew's death reached the bureau quickly, the city health commissioner, Dr. Thomas R. Frieden, said he was not told until more than a month later.

Dr. Frieden hired a new chief of the day care bureau and increased the number of inspectors to 106 from 89. The department says it is conducting 40 percent more inspections than it did last year; and has eliminated a backlog.